Majority-Runoff Two-Round System

These laws a

andthe district magnitude (the number of representatives elected in a district)

legislative and presidential

The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found "it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened," 476 U. S., at 237, n. 4 (emphasis in original).

As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable

In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U. S. 347 (1967). Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth-a location not within the catalog ("persons, houses, papers, and effects") that the Fourth Amendment protects against unreasonable searches. We held that the 1 When the Fourth Amendment was adopted, as now, to "search" meant "[tJo look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief." N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989). 33 Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." "At the very core" of the Fourth Amendment "stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U. S. 505, 511 (1961). With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. See Illinois v. Rodriguez, 497 U. S. 177, 181 (1990); Payton v. New York, 445 U. S. 573, 586 (1980).

All 16- and 17- year-olds misdemeanors start in Family Court New Youth Part within Criminal Courts presided over by specially-trained Family Court judges

On October 1, 2018, the first phase of the Raise the Age law took effect in New York State, meaning the state no longer automatically charges all 16-year-olds as adults. In October 2019, the law phases in 17-year-olds.

anuary 17, 2011

From late December 2010 through mid-January 2011

December 23, 2010

December 21, 2010

December 21, 2010,

December 20, 2010,

90 days.

ecember 19, 2010,

December 18, 2010

in June of 2011

On the afternoon of December 17, 2010

n the meantime,Petitioner returned to classes the next wee

n mid-November 2010,

January, 2011.

In 2010,

By election day 2008

In September 2008

Petitioner Chester Comerford, a tenured law professor at a publically funded andoperated law school known as Olympus State University School of Law,

etitioner, acting as the chat room moderator, was present at all times in the chat room.

heseblackboard pages are the property of the law school.4 Petitioner used these sites to post classassignments. A survey of the site found that roughly two-thirds of the assignments on the FirstAmendment website pertained to speech about threatening federal officials, while half of theassignments on the criminal law website site related to developing arguments related to thedefense and/or prosecution of assassins of federal official

Visitors to the site could read materials about the Constitution and allegations pertainingto the president’s true country of birth that were intended for public viewing. Members of thegroup occasionally referred others to the site so they could learn more about the cause. Guestswere encouraged to inform the public and elected officials about the group’s concerns.Suggested tactics included writing their members of Congress about the cause, starting petitions,picketing at appearances by Senator, and later President, Obama, writing letters to the editor,posting messages on-line, and going on television and radio talk shows. Their efforts to―expose‖ the president as foreign-born intensified after he was inaugurate

f a group called"The Guardians of the Constitution" (the Guardians), of which Petitioner was the creator.1 Thewebsite was the sole conduit used by the Guardians to disseminate information, conductmeetings, and recruit and enlist new members. To become a member, an individual would haveto pledge to protect other members' anonymity, recruit new members, and donate ten percent oftheir annual income in monthly payments not under $100 U.S.D

overnment’s warrantless entry into his chat room violated his Fourth Amendment rights. Heargued that his arrest violated the First Amendment.

The government did not obtain a warrant, but insteadcomplied with the administrative subpoena requirement of 18 U.S.C. §§ 2703(b)(1)(B)(i) and2705(1)(B) of the Stored Communication Act (SCA)

Petitioner ran the website and chat room which, along with the Blackboardwebsites, give rise to the immediate case

a joint task force of the Secret Service (SS) and the FederalBureau of Investigation (FBI) began to investigate Petitioner

Blue noted that the presidentwas scheduled to give the commencement address at Olympus State University in June of 2011and that students and faculty of the law school had been invited

a group called"The Guardians of the Constitution" (the Guardians), of which Petitioner was the creator.

DeNolf Communications.

Neither Pegg nor Thomas werefound to possess any weapons – though Pegg had a license to possess a firearm in Olympus andThomas, a former U.S. Marine who had trained in and was decorated for marksmanship, claimedthat he had not touched a gun since his honorable discharge and that he ―did not believe inviolence – he believed in the Constitution.‖

There was noclear statement or discussion of what the term ―let him have it‖ meant. Nor was there anyevidence that Rider had made specific arrangements to do so – but fellow Guardian TimothyPegg, a resident of Olympus, noted that the president was due to give the commencementaddress at Olympus State University and a second Guardian, Will Thomas, offered to contact atravel agent. No Guardian posted a message taking Thomas up on his offe

On December 21, 2010, achat room member, Casey Rider, an Olympus Law graduate and former student of Comerford’s,initiated a conversation in which she expressed a desire to ―rid us of this imposter and take backour country!‖ Rider stated in the chat room that it would be ―easy‖ for anyone to find thepresident’s travel schedule and to be on-hand when he gave a speech to a group at a fund-raiseror event such as a commencement address. In fact, she wrote that she ―planned to attend such anevent herself in the not so distant future and would really let him have it.‖ Several members,including Petitioner, responded that ―to let him have it would be a good idea.‖

7December 20, 2010, federal law enforcement officials began receiving the content of the chatroom conversations. They did so without being detected by the Guardians. Formerly, livemessaging, such as chat room conversations, was temporary and could not be tracked in theaforementioned manner. New technology, known as "instant messenger reflectors," allowedDeNolf Communications to store chat messages in an archival system as they were sent. Thisenabled third parties to review past post

n December 19, 2010, task force members issued anadministrative subpoena7 to DeNolf Communications requiring DeNolf Communications topreserve and turn over all present and future content occurring in Petitioner's chat room for thenext 90 days. That request was granted that same day by DeNolf Communications

Finding the website was fairly easy. Chat room entry,however, was considerably more difficult.

Petitioner was running in a seminar on the First Amendment, contactedBobby Bronner, the Dean of the Olympus State University School of Law. La Champcomplained the project was ―scary‖ and that the professor ―had crossed a certain line of commondecency.‖ The dean assured La Champ that he would investigate the charges. Dean Bronnerbegan by making an unannounced visit to Petitioner’s class on the First Amendme

Several of the posts lauded Rep. Giffords’ assailant as a ―true American hero,‖ ―apatriot,‖ and ―a role model who we should emulate.‖ The Guardian website featured a map thatpurported to list known public events planned by the president. Members were encouraged to―let their voices be heard‖ at such events. Some posts called for ―showing that we meanbusiness‖ and ―letting him have it in person.‖ One post, wondered if ―there were an Oswaldamong them?‖ Petitioner responded that ―the question is a good one – wish I knew the answer –but don’t we all?‖ In another post Petitioner wrote ―Thomas Jefferson thought a revolution wasin order every 20 years‖ and that ―violence can be a legitimate form of political action

DeNolf Communications, like all ISPs,store and have access to customer’s websites or chat rooms, but never examine the actual contentof those websites or chat rooms.6

In addition, the Secret Service discovered that Petitionerhad an Internet account with DeNolf Communications

This investigation, headed bySecret Service agent Carmen Pettitte, began by requesting that the law school turn over allinformation contained in the Blackboard websites for Petitioner’s two courses

According to La Champ, Petitioner did not changehow he presented issues in class other than to say that ―he was sorry that some of his students didnot understand the First Amendment.‖ His First Amendment class finished working on the mootcourt hypothetical which culminated in an in-class two week oral argument tournament held inearly Decembe

Both blackboard sites containedlinks to a variety of political websites including that of the Guardians.

embers were encouraged to―let their voices be heard‖ at such events

isitors to the site could read materials about the Constitution and allegations pertainingto the president’s true country of birth that were intended for public viewing. Members of thegroup occasionally referred others to the site so they could learn more about the cause. Guestswere encouraged to inform the public and elected officials about the group’s concerns.Suggested tactics included writing their members of Congress about the cause, starting petitions,picketing at appearances by Senator, and later President, Obama, writing letters to the editor,posting messages on-line, and going on television and radio talk shows. Their efforts to―expose‖ the president as foreign-born intensified after he was inaugurated

Thewebsite was the sole conduit used by the Guardians to disseminate information, conductmeetings, and recruit and enlist new members. To become a member, an individual would haveto pledge to protect other members' anonymity, recruit new members, and donate ten percent oftheir annual income in monthly payments not under $100 U.S.D

Because it was easy to findthe website, Petitioner established an elaborate high-tech security system to enter the Guardians'chat room. For instance, Petitioner administered an advanced encryption method through the useof "one-time pads," which are mutually known codes for two parties to communicate messageswithout intrusion via a neutral third-party site. This is not unlike secure credit card transactionsthat many individuals conduct on a daily basis via a third party secure website such as Snookie.These passwords were granted upon the members' payment of the monthly dues, and theychanged twelve times a year. Beyond that, Petitioner sporadically re-routed the website addressto protect members from archiving the same Internet address, generally known as "cookies," intheir computers' histories for extended periods. In addition, all members agreed to certaincommon-sense methods of security such as never listing identities on the website, and tocommunicate in the chat room via fictitious screen names. These measures were meant tomaintain the Guardians' members’ anonymity and guard the chat room from uninvited eye

In 2010, the Republican Party took control of the U.S. House of Representatives. ManyGuardians expected that the Republicans to whom they had written or whose offices they hadcalled would immediately investigate their claims about the president’s true country of birth.When they did not, there was considerable ―chatter‖ in the chat room among the Guardians aboutRepublicans being ―traitors‖ and ―taking matters into their own hands.‖

In September 2008, Petitioner started a website via his Internet Service Provider (ISP),DeNolf Communications. According to Petitioner, the main purpose of the site was ―to providea peaceful and private forum for concerned Americans to discuss whether Barack Obama was

The field test at issue could disclose only one fact previously unknown to the agent -- whether or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or talcum powder. We must first determine whether this can be considered a "search" subject to the Fourth Amendment -- did it infringe an expectation of privacy that society is prepared to consider reasonable? The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities. [Footnote 22] Indeed, this distinction underlies the rule that Page 466 U. S. 123 government may utilize information voluntarily disclosed to a governmental informant, despite the criminal's reasonable expectation that his associates would not disclose confidential information to the authorities. See United States v. White, 401 U. S. 745, 401 U. S. 751-752 (1971) (plurality opinion). A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative -- merely disclosing that the substance is something other than cocaine -- such a result reveals nothing of special interest. Congress has decided -- and there is no question about its power to do so -- to treat the interest in "privately" possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably "private" fact, compromises no legitimate privacy interest. [Footnote 23]

The fact that, prior to the field test, respondents' privacy interest in the contents of the package had been largely compromised is highly relevant to the reasonableness of the agents' conduct in this respect. The agents had already learned a great deal about the contents of the package from the Federal Express employees, all of which was consistent with what they could see. The package itself, which had previously been opened, remained unsealed, and the Federal Express employees had invited the agents to examine its contents. Under these circumstances, the package could no longer support any expectation of privacy; it was just like a balloon "the distinctive character [of which] spoke volumes as to its contents -- particularly to the trained eye of the officer," Texas v. Brown, 460 U. S. 730, 460 U. S. 743 (1983) (plurality opinion); see also id. at 460 U. S. 746 (POWELL, J., concurring in judgment); or the hypothetical gun case in Arkansas v. Sanders, 442 U. S. 753, 442 U. S. 764-765, n. 13 (1979). Such containers may be seized, at least temporarily, without a warrant. [Footnote 19] Accordingly, since it was apparent that the tube and plastic bags contained contraband and little else, this warrantless seizure was reasonable, [Footnote 20] for it is well settled that it is constitutionally reasonable for law enforcement officials to seize "effects" that cannot support a justifiable expectation Page 466 U. S. 122 of privacy without a warrant, based on probable cause to believe they contain contraband. [Footnote 21]

Similarly, the removal of the plastic bags from the tube and the agent's visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search. [Footnote 17] It infringed no legitimate expectation of privacy, and hence was not a "search" within the meaning of the Fourth Amendment.

Respondents do not dispute that the Government could utilize the Federal Express employees' testimony concerning the contents of the package. If that is the case, it hardly infringed respondents' privacy for the agents to reexamine the contents of the open package by brushing aside a crumpled newspaper and picking up the tube. The advantage the Government gained thereby was merely avoiding the risk of a flaw in the employees' recollection, rather than in further infringing respondents' privacy. Protecting the risk of misdescription hardly enhances any legitimate privacy interest, and is not protected by the Fourth Amendment. [Footnote 16] Respondents could have no privacy interest in the contents of the package, since it remained unsealed and since the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to their offices for the express purpose of viewing its contents. The agent's viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment.

This standard follows from the analysis applicable when private parties reveal other kinds of private information to the authorities. It is well settled that, when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs, the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information: "This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed." United States v. Miller, 425 U. S. 435, 425 U. S. 443 (1976). [Footnote 13] The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. In such a case, the authorities have not relied on what is in effect a private Page 466 U. S. 118 search, and therefore presumptively violate the Fourth Amendment if they act without a warrant. [Footnote 14]

The additional invasions of respondents' privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search. That standard was adopted by a majority of the Court in Walter v. United States, supra. In Walter, a private party had opened a misdirected carton, found rolls of motion picture films that appeared to be contraband, and turned the carton over to the Federal Bureau of Investigation. Later, without obtaining a warrant, FBI agents obtained a projector and viewed the films. While there was no single opinion of the Court, a majority did agree on the appropriate analysis of a governmental search which follows on the heels of a private one. Two Justices took the position: "If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official Page 466 U. S. 116 use of a private party's invasion of another person's privacy. Even though some circumstances -- for example, if the results of the private search are in plain view when materials are turned over to the Government -- may justify the Government's reexamination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening, one could only draw inferences about what was on the films. The projection of the films was a significant expansion of the search that had been conducted previously by a private party, and therefore must be characterized as a separate search." Id. at 447 U. S. 657 (opinion of STEVENS, J., joined by Stewart, J.) (footnote omitted). [Footnote 11] Four additional Justices, while disagreeing with this characterization of the scope of the private search, were also of the view that the legality of the governmental search must be tested by the scope of the antecedent private search. ""Under these circumstances, since the L'Eggs employees so fully ascertained the nature of the films before contacting the authorities, we find that the FBI's subsequent viewing of the movies on a projector did not change the nature of the search,' and was not an additional search subject to the warrant requirement.""

The initial invasions of respondents' package were occasioned by private action. Those invasions revealed that the package contained only one significant item, a suspicious looking tape tube. Cutting the end of the tube and extracting its contents revealed a suspicious looking plastic bag of white powder. Whether those invasions were accidental or deliberate, [Footnote 10] and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character.

When the wrapped parcel involved in this case was delivered to the private freight carrier, it was unquestionably an "effect" within the meaning of the Fourth Amendment. Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable. [Footnote 7] Even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package. [Footnote 8] Such a warrantless search could not be characterized as reasonable simply because, after the official invasion of privacy occurred, contraband is discovered. [Footnote 9] Conversely, in this case, the fact that agents of the private carrier independently opened the package and made an examination that might have been impermissible for a government agent Page 466 U. S. 115 cannot render otherwise reasonable official conduct unreasonable. The reasonableness of an official invasion of the citizen's privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred.

The first Clause of the Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." This text protects two types of expectations, one involving "searches," the other "seizures." A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. [Footnote 4] A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property. [Footnote 5] This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable "to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official."

This argument does not withstand scrutiny. The fortuity of whether or not the phone company in fact elects to make a quasi-permanent record of a particular number dialed does not, in our view, make any constitutional difference. Regardless of the phone company's election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record. In these circumstances, petitioner assumed the risk that the information would be divulged to police. Under petitioner's theory, Fourth Amendment protection would exist, or not, depending on how the telephone company chose to define local-dialing zones, and depending on how it chose to bill its customers for local calls. Calls placed across town, or dialed directly, would be protected; calls placed across the river, or dialed with operator assistance, might not be. We are not inclined to make a crazy quilt of the Fourth Amendment, especially in circumstances where (as here) the pattern of protection would be dictated by billing practices of a private corporation.

This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that, if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. Tr. of Oral Arg. 3 5, 11-12, 32. We

Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not "one that society is prepared to recognize as reasonable.'" Katz v. United States, 389 U.S. at 389 U. S. 361. This Court consistently has held that a person has no legitimate expectation of privacy in information he Page 442 U. S. 744 voluntarily turns over to third parties

subscribers, on a page entitled "Consumer Information," that the company "can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls." E.g., Baltimore Telephone Directory 21 (1978); District of Columbia Telephone Directory 13 (1978). Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

Petitioner argues, however, that, whatever the expectations of telephone users in general, he demonstrated an expectation of privacy by his own conduct here, since he "us[ed] the telephone in his house to the exclusion of all others." Brief for Petitioner 6 (emphasis added). But the site of the call is immaterial for purposes of analysis in this case. Although petitioner's conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed. Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone, rather than on some other phone, could make no conceivable difference, nor could any subscriber rationally think that it would.

This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud, and preventing violations of law." United States v. New York Tel. Co., 434 U.S. at 434 U. S. 174-175. Electronic equipment is used not only to keep billing records of toll calls, but also "to keep a record of all calls dialed from a telephone which is subject to a special rate structure." Hodge v. Mountain States Tel. & Tel. Co., 555 F.2d 254, 266 (CA9 1977) (concurring opinion). Pen registers are regularly employed "to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling." Note, The Legal Constraints upon the Use of the Pen Register as a Law Enforcement Tool, 60 Cornell L.Rev. 1028, 1029 (1975) (footnotes omitted). Although most people may be oblivious to a pen register's esoteric functions, they presumably have some awareness of one common use: to aid in the identification of persons making annoying or obscene calls. See, e.g., Von Lusch v. C & P Telephone Co., 457 F. Supp. 814, 816 (Md.1978); Note, 60 Cornell L.Rev. at 1029-1030, n. 11; Claerhout, The Pen Register, 20 Drake L.Rev. 108, 110-111 (1970). Most phone books tell

In applying the Katz analysis to this case, it is important to begin by specifying precisely the nature of the state activity that is challenged. The activity here took the form of installing and using a pen register. Since the pen register was installed on telephone company property at the telephone company's central offices, petitioner obviously cannot claim that his "property" was invaded or that police intruded into a "constitutionally protected area." Petitioner's claim, rather, is that, notwithstanding the absence of a trespass, the State, as did the Government in Katz, infringed a "legitimate expectation of privacy" that petitioner held. Yet a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications. This Court recently noted: "Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed -- a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers." United States v. New York Tel. Co., 434 U. S. 159, 434 U. S. 167 (1977). Page 442 U. S. 742 Given a pen register's limited capabilities, therefore, petitioner's argument that its installation and use constituted a "search" necessarily rests upon a claim that he had a "legitimate expectation of privacy" regarding the numbers he dialed on his phone.

This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," 389 U.S. at 389 U. S. 361 -- whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." Id. at 389 U. S. 351. The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as reasonable,'"

Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In determining whether a particular form of government-initiated electronic surveillance is a "search" within the meaning of the Fourth Amendment, [Footnote 4] our lodestar is Katz v. United States, 389 U. S. 347 (1967). In Katz, Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a "search" can occur only when there has been a "physical intrusion" into a "constitutionally protected area," noting that the Fourth Amendment "protects people, not places." Id. at 389 U. S. 351-353. Because the Government's monitoring of Katz' conversation "violated the privacy upon which he justifiably relied while using the telephone booth," the Court held that

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U. S. 745, 401 U. S. 751-752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id. at 401 U. S. 752; Hoffa v. United States, 385 U.S. at 385 U. S. 302; Lopez v. United States, 373 U. S. 427 (1963). [Footnote 4]

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate "expectation of privacy" in their contents. The checks are not confidential communications, but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. The lack of any legitimate expectation of privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy Act, the expressed purpose of which is to require records Page 425 U. S. 443 to be maintained because they "have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings." 12 U.S.C. § 1829b(a)(1). Cf. Couch v. United States, supra at 409 U. S. 335.

quoting Warden v. Hayden, 387 U. S. 294, 387 U. S. 304 (1967), that "we have . . . departed from the narrow view" that "property interests control the right of the Government to search and seize,'" and that a "search and seizure" become unreasonable when the Government's activities violate "the privacy upon which [a person] justifiably relie[s]." But in Katz, the Court also stressed that "[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." 389 U.S. at 389 U. S. 351. We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate "expectation of privacy" concerning their contents. Cf. Couch v. United States, 409 U. S. 322, 409 U. S. 335 (1973).

Respondent urges that he has a Fourth Amendment interest in the records kept by the banks because they are merely copies of personal records that were made available to the banks for a limited purpose and in which he has a reasonable expectation of privacy.

accounts, like "all of the records [which are required to be kept pursuant to the Bank Secrecy Act,] pertain to transactions to which the bank was itself a party." Id. at 416 U. S. 52.

On their face, the documents subpoenaed here are not respondent's "private papers." Unlike the claimant in Boyd, respondent can assert neither ownership nor possession. Instead, these are the business records of the banks. As we said in California Bankers Assn. v. Shultz, supra at 416 U. S. 48-49,

Hoffa v. United States, 385 U. S. 293, 385 U. S. 301-302 (1966), the Court said that "no interest legitimately protected by the Fourth Amendment" is implicated by governmental investigative activities unless there is an intrusion into a zone of privacy, into "the security a man relies upon when he places himself or his property within a constitutionally protected area." The Court of Appeals, as noted above, assumed that respondent had the necessary Fourth Amendment interest, pointing to the language in Boyd v. United States, supra at 116 U. S. 622, which describes that Amendment's protection against the "compulsory production of a man's private papers.

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U. S. 610 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U. S. 483 (1964) (night hotel clerk could not validly consent to search of customer's room), but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right, and that the others have assumed the risk that one of their number might permit the common area to be searched.

"that, where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either."

consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared

It has been assumed by the parties and the courts below that the voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial. This basic proposition was accepted by the Seventh Circuit in this case, 476 F.2d at 1086, as it had been in prior cases, [Footnote 4] and has generally been applied

The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive Page 389 U. S. 357 means consistent with that end. Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U. S. 20, 269 U. S. 33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." Wong Sun v. United States, 371 U. S. 471, 371 U. S. 481-482. "Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U. S. 48, 342 U. S. 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment [Footnote 18] -- subject only to a few specifically established and well delineated exceptions. [Footnote 19] It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially contemporaneous with an individual's arrest could hardly be deemed an "incident" of that arrest. [Footnote 20] Page 389 U. S. 358 Nor could the use of electronic surveillance without prior authorization be justified on grounds of "hot pursuit." [Footnote 21] And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect's consent. [Footnote 22] The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case. [Footnote 23] It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such authorization "bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio, 379 U. S. 89, 379 U. S. 96. And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment Page 389 U. S. 359 violations "only in the discretion of the police." Id. at 379 U. S. 97.

The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance

Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any "technical trespass under . . . local property law." Silverman v. United States, 365 U. S. 505, 365 U. S. 511. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people -- and not simply "areas" -- against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye -- it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, [Footnote 10] in a friend's apartment, [Footnote 11] or in a taxicab, [Footnote 12] a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U. S. 206, 385 U. S. 210; United States v. Lee, 274 U. S. 559, 274 U. S. 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Davis was not guilty of an unlawful invasion of petitioner's office simply because his apparent willingness to accept a bribe was not real. Compare Wong Sun v. United States, 371 U. S. 471. He was in the office with petitioner's consent, and, while there, he did not violate the privacy of the office by seizing something surreptitiously without petitioner's knowledge. Compare Gouled v. United States, supra. The only evidence obtained consisted of statements made by Lopez to Davis, statements which Lopez knew full well could be used against him by Davis if he wished. . . ."

Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.

It is obvious that the petitioner was not relying on the security of his hotel suite when he made the incriminating statements to Partin or in Partin's presence. Partin did not enter the suite by force or by stealth. He was not a surreptitious eavesdropper. Partin was in the suite by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence. The petitioner, in a word, was not relying on the security of the hotel room; he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing.

And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private papers in Gouled, or the surreptitious electronic surveillance in Silverman

What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile

Senate Bill S1099A 2023-2024 Legislative Session Relates to procedures required for the custodial interrogation of children

Minors are particularly susceptible to self-incrimination and relinquishing legal rights because the prefrontal cortex—the region of the brain responsible for reasoning, planning and considering long-term consequences—does not fully develop until age 25. In exonerated cases where the person was under 18 at the time of the crime, 34% involved a false confession, according to the National Registry of Exonerations. On the other hand, only 10% of exonerated adults falsely confessed. Aligning juvenile policy with the latest developmental science as well as recommendations made by the International Association of Chiefs of Police, some state legislatures are enacting laws that strengthen the due process rights of juveniles during one of the most critical stages of the justice continuum.

When law enforcement officers question a young person in custody, it is called custodial interrogation. In many states, lawyers are not guaranteed for every child during police interrogation, and most states allow children to waive their right to legal counsel—even if they are unclear about what that means. Many young people might not realize they have a right to remain silent and that they might not have to talk to anyone until a parent or attorney arrives. Young people who are intimidated or influenced during a custodial interrogation can face long-term consequences, including being coerced into false confessions or agreeing to a plea that they do not understand.

Several states, including California,28 Illinois,29 Montana,30 New York,31 and Oregon32 nowrequire that certain custodial interrogations of children33 be electronically recorded orpresume that statements made by children during custodial interrogations are inadmissibleif the interrogation is not recorded.• In 2021, Illinois34 and Oregon35 passed bills establishing a presumption that confessionsby children are inadmissible if made as a result of a custodial interrogation in which a lawenforcement officer knowingly used deception

n 2016, New Mexico prohibited confessions or admissions from being used against a childunder age 13 and created a rebuttable presumption that confessions or statements madeby 13- or 14-year-olds are inadmissible.25• Effective as of January 1, 2021, California established a non-waivable right for minors toconsult with legal counsel prior to a custodial interrogation.26• Effective as of January 1, 2017, Illinois law requires that children under the age of 15charged with homicides or sex offenses “must be represented by counsel” during theentirety of their custodial interrogations

nothing to hide,17 and then, under the pressure of a coercive interrogation, may “confess” in orderto end the interrogation, wrongly assuming that other evidence will subsequently demonstratetheir innocence.18 In reality though, confessions often trump other evidence, or shape thesubsequent investigation so evidence that contradicts the confession – including DNA evidencethat excludes the youth or identifies other potential perpetrators – is ignored.19False confessions are entirely too common even among adults. Children, however, areespecially likely to falsely confess. Thirty-six percent of individuals who have been exoneratedfor crimes that they were convicted of while children, and 86% of those exonerated for crimesthat purportedly occurred before they turned 14, had falsely confessed, compared to only10% of those exonerated for crimes they were convicted of as adults. 20 False confessions canalso contribute to ongoing racial disparities that have included the arrest and charging of adisproportionate number of Black children; indeed, a disproportionate percentage of thoseexonerated after falsely confessing are Blac

Miranda rights are a fundamental constitutional guarantee. They are also primarily intended tosafeguard against false confessions, a phenomenon which the Supreme Court has found to be“frighteningly” common, even among adults.15 This is in part due to psychologically coerciveinterrogation practices, such as the use of deception (including both false offers of leniency aswell as the presentation of false evidence), that have been shown to be likely to produce falseconfessions.16 Counterintuitively, innocent individuals may be particularly susceptible to coercivepractices; they are often more likely to waive their Miranda rights because they believe they have

Children also are particularly vulnerable to pressures inherent in an interrogation setting.13 Theprefrontal cortex, the portion of the brain responsible for judgment and decision-making, is notfully developed until the mid-twenties. As a result, in the context of an interrogation, young peopleare less likely to fully consider the long-term implications of confessing to something they did notdo, and more likely to say whatever they think is necessary in order to extricate themselves fromthe interrogation setting and, ideally, go home. They are also especially likely to be influencedby external pressure, having been taught to comply with authority figures, and are more likelyto be intimidated by police officers. Moreover, even when interrogations do not result in a falseconfession, they may still cause or exacerbate trauma, which can have lasting repercussions foryoung people

The brains of young people are still developing in ways that cause them to think and behavedifferently from adults.5 As the U.S. Supreme Court has recognized, these differences areparticularly relevant in the context of an interrogation6: “A lack of maturity and an underdevelopedsense of responsibility are found in youth more often than in adults and are more understandableamong the young. These qualities often result in impetuous and ill-considered actions anddecisions.”7 Likewise, the court has noted that “juveniles are more vulnerable or susceptible tonegative influences and outside pressures....”8Yet law enforcement officers are rarely trained in developmentally appropriate, trauma-informed,and racially equitable approaches to interacting with youth. As a result, law enforcement oftenuse adult-oriented tactics to interrogate youth, including threats, coercion, deceit, and promisesof leniency for cooperation, as well as other strategies which are uniquely powerful when usedwith children. Likewise, officers may fail to recognize youth with literacy issues, mental illness, orcognitive delays, or youth in a state of shock or under the influence. Legal and policy reform is vitalto ensure fair and just outcomes for children and communities.9The consequences of failing to implement safeguards for children are grave. For example, studiesestimate that 90% of children, often without any opportunity to consult parents or an attorney,waive Miranda rights10 – a decision that can have severe, lasting repercussions. Indeed, manychildren do not understand the meaning or import of these protections,11 a natural consequenceof the fact that the typical Miranda warning requires close to a 9th-grade reading level for fullcomprehension

Mandate counsel be provided to youth under 18 before interrogation occurs. Consultation with counsel cannot be waived by youth or their families. Any statement obtained in violation of the above cannot be used against the youth at trial.

Interrogate children without their parents or legal guardians present. Lie to children to persuade them to waive their Miranda rights. Question children without telling the youth or their guardians the reason for the questioning.

Specifically, during its visit to Washington, D.C., the Commission learned thatwhen youth are charged in adult courts, the courts do not mandate orfacilitate the involvement of the children’s parents, because the children aretreated as adults and are therefore considered to be independent andmature individuals not in need of parental guidance and assistance duringthe proceedings. This is in stark contrast to the juvenile system, wherejuvenile courts require the active participation of children’s parents andfamily in every stage, as an essential element of the proceedings

In the case of solitaryconfinement, research might build upon the studies224 that show the short-termimpact of prolonged isolation to show that such practice in fact has enduring

Moreover, given the Court’srecognition of juveniles’ developmental immaturity, it seems to have rejectedretribution and deterrence as supportable penological aims. As Justice Kennedyexplained in Roper (and quickly summarized and dismissed in Graham),220juveniles’ reduced culpability eliminates the justification of any extremeretribution.221 Furthermore, given the infrequency with which juveniles performany cost-benefit analysis, extreme practice carries no deterrent impact.222 Assuch, the Court seems most focused on assessing whether a given practiceserves any valid incapacitative or rehabilitative purpose. Research effortsshould therefore focus on why certain incarceration conditions fail to bothincapacitate and rehabilitate juveniles and why, even if a given practice doesincapacitate youths (as in the case of solitary confinement or physical restraint),it does so at the expense of their future rehabilitation.223

Though further, more robust longitudinal research is required, thesestudies’ findings mirror results of more general research on child maltreatmentand development: maltreatment and neglect inspire “isolation, fear, and aninability to trust” that can translate to “lifelong psychological consequences,including low self-esteem, depression, and relationship difficulties.”70 Thetraumas children experience are also linked to physical illness later in life,including heart disease, diabetes, obesity, and sexually transmitted diseases, aswell as worsened occupational health and job performance.71 Incarceratedyouths’ isolation only augments the impact of maltreatment because they lackthe human connections that encourage positive attachment and self-esteem,undermining their ability to cope with the traumas they experience.7

o incarceration, abuse during incarceration was a significant predictor ofposttraumatic stress disorder (PTSD) and depressive symptoms.66 The morefrequently a youth experienced abuse during incarceration, the more likely heor she was to suffer PTSD and depression.67 A 2012 study indicated increasedlikelihood of substance abuse as well as other mood disorders;68 the study alsosuggested that, while such conditions might decrease as time passed, formerlyincarcerated youths were more likely to experience persistent mental healthissues.6

Youths housed in adult facilities arethirty-six times more likely to commit suicide in adult jail than they are injuvenile detention facilities.63

Young people thus face a difficult choice: fend forthemselves in the general population or seek “protection,” usually in the formof solitary confinement.60 Furthermore, adult facilities are not equipped toprovide necessary education and rehabilitative programs for youths. In fact,forty percent of adult jails provide no educational services at all.61 Nor canadult facilities easily accommodate the unique nutritional, medical, and dentalneeds of young persons.62

Youths housed in adult facilities fare worse. Relative to their peers injuvenile facilities, young persons in adult jails are five times more likely to besexually assaulted and fifty percent more likely to be attacked with a weapon.57They are twice as likely to be beaten by staff,58 who are not trained to engagewith youths and thus frequently view age as an aggravating rather thanmitigating factor.59

at as many as two thirds of detained youth may possess mental disorders—with rates of depression among incarcerated juveniles at four and a half timesthe national average,54 and rates of attempted suicide at two to four times thenational average55—makes them all the more vulnerable to traumatic situationsand inadequate mental health care

In 2012, twenty-one percent of juvenilefacilities were at or over standard capacity,49 limiting youths’ access to mentalhealth and medical resources, undermining adequate provision of programmingand education services, and increasing the risk of violence and suicidalbehavior rates.50 Nearly ten percent of youths in juvenile facilities were victimsof sexual assault.51 Twenty-two percent of facilities employed solitaryconfinement as punishment.52 Fourteen juveniles died while in custody,including two who were murdered and five who committed suicide.

n 2015, 4,493 minors were confined in adult prisons andjails,43 and the number of admissions each year relative to the numberincarcerated on any given day may be ten or twenty times as high

Despite the best efforts of 1800s reformers to create distinct facilities toprotect youths from the dangers of adult incarceration, the separation has notendured. A rise in violent crime in the 1980s and 1990s spurred a rash of lawsby which states could attempt to sentence juveniles as adults, resulting inincreases in arrests, length of incarceration, and the transfer of youths to theadult criminal justice system.41 Adolescent confinements spiked at roughly14,000 in 1997.42

Juvenile Justice and Delinquency Prevention’s census in 2013, there werenearly 20,000 youth in detention centers and 35,000 confined in correctionalfacilities or other residential programs.39 The number of juvenile admissionseach year relative to the number incarcerated on any given day is likely five tosix times as high.4

Despite the deplorable conditions of juvenile detention facilities today,reformers in the nineteenth century created juvenile detention facilities withlaudable motives. In 1825, a group of Quakers founded New York’s House ofRefuge30 to prevent the perceived corruptive influence of adult criminals onimmature, innocent youth.31 Prior to that, adult criminals and young personswere imprisoned in the same facilities.32 In 1855, Chicago opened its ChicagoReform School,33 forty years before Illinois passed the Juvenile Court Act of1899, which established the first juvenile court in the United States.34 Withintwenty years, thirty jurisdictions followed Illinois’ lead, re-establishing thestate not as an adversary to juvenile delinquents but, pursuant to its parenspatriae power, as a benevolent intervener.35Today, all fifty states and the District of Columbia have juvenile courtsystems36 and corresponding specialized detention centers,37 training schools,and youth centers to “treat” delinquent youth.

The practices that characterize juvenile confinement compromisechildren’s rehabilitative prospects, making them more likely to recidivate,22undermining their prospects for finishing school,23 and exacerbating mentalillness24 that may even result in suicide.

taken to a psychiatric ward, where he spent two weeks.11 A year later, he washospitalized again.12 Though he returned to school following his lastconfinement, Kalief continued to exhibit signs of paranoia, anxiety, anddepression.13 According to his family, Kalief “ultimately was unable toovercome his own pain and torment which emanated from his experiences insolitary confinement.”14Kalief Browder’s story publicizes the “hell on Earth”15 many incarceratedadolescents live each day.16 And while Kalief’s story ended in a particularlytragic way, he is but one of thousands of youths17 permanently changed by theirtraumatic experiences in confinement. For example, at a detention center inNampa, Idaho, a nurse forced a boy to seek release on fabricated home visits,during which time she took him to her house, where she drugged him beforesexually assaulting him.18 Sixteen-year-old, 5’ 2” Rodney Hulin was anallyraped within three days of his arrival at the Clemens Prison, an adult facility inBrazoria County, Texas; he was nonetheless returned to the same unit threedays later.19 After guards rejected repeated pleas for help, Rodney was finallyremoved to solitary confinement for protective purposes, where he attempted tohang himself.20 He died in a prison hospital bed after spending four months on

These beliefs led to welfare models of a separate court for children being developed in both countries around 1900. Eventually,questions regarding the effectiveness of these courts and concerns for the treatment of juveniles coming into these courts andtheir ‘rehabilitation’ programs led to the introduction of due process rights into the juvenile courts. The welfare model of juvenilejustice began to evolve into a justice model in both countries. In more recent history, concerns about juvenile crime and theeffectiveness of the juvenile courts drove legislation and policy in both countries to embrace a more punitive, or get-tough,approach with juveniles. Currently, it seems that both countries are grappling with what comes next. There appears to be a slightshift from the punitive approach to juvenile crime. Time, crime rates, and public sentiment will determine the next major shiftin juvenile justice philosophy for both countrie

n 2003, Canada passed the Youth Criminal Justice Act (YCJA). The YCJA called for a reduction in the use of institutions,increased reintegration of youth into the community (International Cooperation Group, 2004) and the replacement of transferringyouth into the juvenile system by offering adult sentences in juvenile court (John Howard Society of Alberta, 1999). In additionthe YCJA stressed juvenile accountability, meaningful consequences for inappropriate actions, and reduction of disparity seenin the juvenile court (John Howard Society of Alberta, 1999)

1984, because of an increase in juvenilecrime, the YOA was passed (Zalkind & Simon, 2004) and juvenile offenders received many due process rights. The act alsostressed accountability and public protection, more treatment for youth, and sentencing that fit the crime. The YOA set the*243 age jurisdiction of the juvenile court at ages 12 through 17, inclusive (Bertrand, Arnold, & Hornick 2002)

By 1965, a federal document entitled “Juvenile Delinquencyin Canada” recommended due process rights for juveniles. The report opened the door to discussion, debate and potentialcompromise about what a juvenile justice system should do (International Cooperation Group, 2004). By 1970 the YoungOffenders Act (YOA) recommended adoption of the 1965 report. It was not adopted. I

s a result of the child saving movement, the Juvenile Delinquents Act (JDA) was passed in 1908 (John Howard Societyof Alberta, 1999). The JDA created a separate system of justice for juveniles. The JDA emphasized the welfare model andrelied on the doctrine of parens patriae (International Cooperation Group, 2004). As in the American system, the proceedingswere informal and due process rights were virtually non-existent

. Canadians addressedthe issues of housing juveniles in adult jails and prisons the same way as reformers in the US did -- by recommending creationof houses of refuge and developing reformatories throughout the mid to late 1880s (International Cooperation Group, 2004).In 1893, the government instituted a separate court system for juveniles based on the premise of parens patriae (Zalkind &Simon, 2004). In 1894, the Act Respecting Arrest, Trial and Imprisonment of Youthful Offenders was passed by Parliament(International Cooperation Group, 2004). This law applied to all juveniles who committed crimes under age 16, focusedon reformation, not punishment, mandated separation from adults during incarceration and stressed privacy during trials(International Cooperation Group, 2004)

. However, this movement was short-lived as by the early 1980s, avery conservative approach to juvenile crime began to sweep the nation. The get-tough approach to delinquent juveniles hasresulted in a philosophical shift from rehabilitation and due process to deterrence and punishment. The juvenile justice systemexperienced a renewed reliance on juvenile facilities and increased transfer to the adult system, and engaged in open debateabout the use of the death penalty for juvenile offenders.

bout the conditions of confinement in juvenile correctional facilities led to congressional involvement in the juvenile justicesystem. A series of congressional hearings resulted in the Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974.The JJDPA, among other things, called for decreased reliance on juvenile correctional facilities, the removal of children fromadult jails and status offenders from juvenile facilities. The JJDPA resulted in the creation of many community based anddiversion programs in juvenile justice (Bilchik, 1999

The belief that the court wouldalways act in the best interest of the child, however, began to be questioned in the 1960s, and as a result, due process rightswere introduced into juvenile justice (Bilchik, 1999).*242 The Supreme Court held in 1967, that juveniles should hold basic rights in an adjudication hearing that could resultin their loss of liberty (del Carmen et al, 1998). Cases soon followed which raised the burden of proof in juvenile courts andchanged the process of juvenile justice as these rights were introduced (del Carmen et al, 1998)

n the early United States, adolescents over the age of seven could be regarded the same as adults with no different criminalsanctions than those experienced by adults. Social reformers of the early 1800s were concerned about this, and began to workto develop some different practices for youth who committed crime. In 1825, the first separate juvenile institution in the UnitedStates was opened -- the New York House of Refuge (Krisberg & Austin, 1993). Within twenty-two years, this concept ofan institutional approach to juvenile misbehaving was expanded, with government intervention, into the reform school model(Krisberg, 2005). However, persistent problems with this model led reformers to call for the creation of the first juvenile court(del Carmen, Parker, & Reddington, 1998).In 1899, in Chicago, Illinois, the first juvenile court opened. The court handled all troubled children under age 16. The purposeof the court was to rehabilitate and change behavior, but not to punish. The court was based on the doctrine of parens patriae,where the state The court stepped in as a kind, but stern parent to raise children who acts as a guardian to protect the interestsof children, who were failed by their natural parents. To this end, all court proceedings were informal and juveniles held noconstitutional rights. This was, in essence, a welfare system and not a legal court (Snyder, 2002). The belief that the court wouldalways act in the best interest of the child, however, began to be questioned in the 1960s, and as a result, due process rightswere introduced into juvenile justice (Bilchik, 1999)

An examination of the development of the juvenile justice systems in the United States and in Canada demonstrates a parallelhistory. The shared belief that juveniles were more capable of rehabilitation than, and just plain “different” from adults led tothe creation of separate court systems in both countries around the turn of the 19th century. In both countries, the initial juvenilecourt was in essence, a welfare system, concerned more with the best interest of the child and treatment issues as opposedto legal issues such as due process rights. Eventually, both countries extended due process rights to juveniles years after thejuvenile court system were created. And, finally, during the 1980s and 1990s, both the United States and Canada went througha “get-tough” approach to juvenile crime, which resulted in significant changes to the process of juvenile justice

In the United States, it seems far more dependent on the state and/or the people involved in developing alternative programs.While there have been some legislative mandates, they have not been comprehensive throughout the states. Some states haveprovided for the financial development of restorative justice programs, while others have no programs at all

ecause of its statutory framework, the criminal code and juvenile code in Canada are federal. Therefore, changes that occurhappen on the level of a national perspective. The United States, on the other hand, has a less uniform approach. State by *193state, programs differ. While Canada still differs in approach by province, there is still a much more unified approach withinits legal structure.It is fair to conclude that the legislative framework in Canada provides for greater availability of restorative justice. Thedetermination that aboriginal people need to be provided for in a culturally sensitive way and the strong base of native practicesin restorative justice, lend themselves to utilization in Canada. Indeed, the fact that at every level of the criminal justice systemthere are legislative mandates for restorative justice supports the growth of its policies (Latimer & Kleinknecht, 2000)

While in the United States there is not a federal police agency that compares to the Royal Canadian Mounted Police, through theDepartment of Justice there is the Office of Community Oriented Policing. This office funds police departments throughout thecountry to provide community-oriented policing. It also funds training through its network of Regional Community PolicingInstitutes and monographs that it publishes (COPS Website). In 1999, it published Community Policing, Community Justice,and Restorative Justice. This publication laid a framework for restorative justice to be integrated into the growing utilization ofcommunity policing (Nicholl, 1999). In fact, the federal statutes mentioned above which include restorative justice, all relatedto school resource officers, are funded through the COPS Office.There are individual police departments within the United States, which have used restorative practices in their policing. In 1999,nine police departments were identified as ones which had developed policies for police actively being involved in restorativejustice (Nicholl, 1999). One of these, in Woodbury, Minnesota, started its program in 1995 (Umbreit & Fercello, 1997). Basedon the Walla Walla program in Australia, the Community Restorative Conferencing program has met much success. Today atleast 50% of all juvenile cases in Woodbury are resolved through these conferences (Hines, Bazemore, 2003)

ermont has developed an extensive system of community reparation boards. Statutes allow for the funding of these (13V.S.A. Sec. 7030 and 28 V.S.A. Sec. 2a, 28). In fact, Vermont has led the way in promoting the use of the community as part ofthe restorative justice process by utilizing these community panels (Karp, Bazemore, & Chesire, 2004; Boyes-Watson, 2004).Other states have utilized these laws to set up victim offender mediation programs for the use of victims and violent offenders.Texas has one of the largest programs for violent offenders in the country. It was established to provide for the needs of victimsto meet with the person who harmed them or a loved one (Umbreit, 2003).However, many of these states simply allow for the funding or the optional implementation of practices. In fact, this lack ofa comprehensive legislative framework has been cited as a reason that the United States is behind much of the rest of thedemocracies. Some support the idea that in order to create the practice of restorative justice in all states, there first needs tobe a legislative framework (Bazemore & Griffiths, 2003). Others in the United States feel that it must be a grass-roots effort,which is then supported by legislation (Pranis, 1998).The reality in the United States is that many programs have been developed without statutory authority. In Missouri, whileno restorative justice language is found in the juvenile code, many courts throughout the state have implemented programs.Utilizing the authority of the juvenile court, judges and/or juvenile officers have chosen to have restorative justice programs.Promoting this has been the state's determination that Title II money available from the Office of Juvenile Justice andDelinquency Prevention, Department of Justice, which passes through the Missouri Department of Public Safety, should beused for restorative justice and other innovative practices (Katz & Rempe, 2004). In addition, OJJDP Challenge Grant moneyhas been used to subsidize state-wide restorative justice research and training for juvenile court personnel (Katz, 2000)

hile in Canada, there are very specific avenues for restorative justice practice, in the United States there are varied approaches.Many states have implemented some aspect of restorative justice in their juvenile codes (e.g. A.C.A. Sec. 9-301-401 (AR)and ARCS Sec. 13.40.070 (Washington state). Of the twenty-nine programs, twenty-two are for juvenile offenders (Umbreit,Lightfoot, & Fier, 2001). Other states have only focused on the adult system (see Sec. 217.777 R.S.Mo. (Missouri) and Tex.Code Crim. (Texas). Seven states provide for adult programs and not juvenile (Umbriet, Lightfoot, & Fier, 2001). Indeed, somestates have focused only on awarding grants to non-profits for this purpose (See NY CLS Jud Sec. 849-a-g (NY) and K.S.A.Sec. 38-1635 (K

he United States legal framework is much different from Canada. While there is federal criminal law, only specific crimesfall under federal jurisdiction. When looking for federal statutes which contain the word “restorative justice,” only four federallaws are available. They all relate to the work of school resource officers and list restorative justice as a possible intervention(USCA, 2005).The states, however, have implemented much restorative justice. As of 2001, twenty-nine states had implemented restorativejustice within this statutory framework. These statutes relate to many applications of restorative justice. While only nineteenstates have actually used the words “restorative justice” in their language, at least twenty-nine states have actually authorizedsome aspect of it (Umbreit, Lightfoot, & Fier, 200

auses, to respond to the needs of young persons, and to provide guidance and support to those at risk ofcommitting crimes ...”;.*191 “WHEREAS Canadian society should have a youth criminal justice system that comments respect,takes into account the interests of victims, fosters responsibility and ensures accountability through meaningfulconsequences and effective rehabilitation and reintegration, and that reserves its most serious intervention forthe most serious crimes and reduces the over-reliance on incarceration for non-violent young persons ...” (YouthCriminal Justice Act, Preamble).At Section 4 in the Youth Criminal Justice Act, juveniles are allowed the opportunity for non-court types of interventions ifthese extrajudicial measures “are adequate to hold a young person accountable for his or her offending behavior ...” (YouthCriminal Justice Act, Sec. 4). This section allows for the use of restorative justice in juvenile matters (Barnhorst, 2004). TheAct specifically allows for conferences. It goes on to mandate conferences for juveniles. (YCJA, Sec. 19) This section has beenused to implement family group conferencing, using the Wagga Wagga model with police (Chatterjee & Elliott, 2003). It hasalso been used for other restorative justice interventions. However, the fact that these conferences are “advisory” have left somepractitioners wondering if courts will allow the decisions reached in them to stand (Hilliam, Retisma-Street, & Hackler, 2004).The Youth Criminal Justice Act is still young, and its affect on the use of restorative justice in Canada is still unknown. However,early case law has shown the courts to mandate that non-judicial options be utilized whenever appropriate, as stated in the Act'sDeclaration of Principles (Barnhorst, 2004).In Canada, the federal criminal statutes are written for all of the provinces, while the applications lie within the frameworkdecided in each province. How this will play out with the Youth Criminal Justice Act will be up to the provincial administrators,and the culture that already exists (Hillian, Reisma-Street, & Hackler, 2004). However, throughout the nation, the law for thetreatment of all crime is consistent

The Youth Criminal Justice Act of 2002 was enacted because of two issues surrounding juvenile crime. First, the legislative actwas designed to make it easier to treat minors who committed serious crimes as adults. The second goal was to reduce the useof courts and incarceration for young offenders who commit less serious crimes (Bala & Anand, 2004).While never using the language of restorative justice, the act clearly states its goal of crime prevention, rehabilitation and therestorative principles of victim interests and offender accountability. It states in its preamble:“WHEREAS communities, families, parents and others concerned with the development of young persons should,through multi-disciplinary approaches, take reasonable steps to prevent youth crime by addressing its underlying

n 1997, the Royal Canadian Mounted Police adopted a policy which gave the police the discretion to utilize restorative justice.Based on family group conferences used in Australia and New Zealand, the RCMP developed guidelines for community justiceforums (Chatterjee & Elliott, 2003). These forums, designed after the Wagga Wagga model and piloted by a police officer inAustralia, were developed utilizing Braithwaite's concept of “reintegrative shaming” (O'Connell, 1993).In these forums, the offender, victim and their families or supporters all meet together with a trained facilitator, who is often apolice officer. During these forums, victims have an opportunity to tell the offender about the impact of the crime on them, askthe offender questions about the crime, and discuss issues of restitution. The offender can take responsibility for the harm thatwas done, and is given the opportunity to make things right (Community, Contract and Aboriginal Policing, RCMP Website).The unique character of these conferences is the opportunity for police to decide to refer cases directly to these conferences,rather than the court system. An example is the Nanaimo Community Justice Forum in Nanaimo, British Columbia, administeredby the Royal Canadian Mounted Police (RCMP) (Mirsky, 2005). Beginning in 1996, RCMP officers choose cases which areappropriate for restorative justice. Over a four year period, 125 officers referred cases to restorative justice. Officers receivetraining in community justice forums at the RCMP Academy in Regina. Both juvenile and adult offenders are referred tothese conferences. Between 1999 and 2005, 6,000 participants participated in the Nanaimo program, a 6% recidivism rate wasreported, and 97% of the offenders complied with their agreements (Mirsky, 2005).The RCMP also trains others to facilitate these forums. By the end of 1998, the RCMP had trained 1,700 individuals to conductcommunity justice forums. These facilitators handled over 30 different types of offenses. Data collected from 487 participantsfound them overwhelmingly a fair and satisfying way to handle the issue (Chatterjee & Elliott, 2003)

Code Sec. 718.2 (e). The Court held that when dealing with aboriginal offenders, the circumstances of their lives, i.e., poverty anddiscrimination, must be considered in sentencing. The Court continued that a different analysis for aboriginal people includingthe factors that had to be used, and different forms of sentencing had to be developed. The Court also mandated that restorativejustice be considered as part of the sentence in aboriginal cases, (Gladue, 1999). In R. v. Wells (2000) the Court reaffirmedGladue and held that restorative justice must be considered in imposing a sentence on an aboriginal defendant,While this part of the criminal code is focused on sentencing, with the offender being the focus, the Correctional Service ofCanada has also established a Victim Offender Mediation Program for violent offenders. In this program, victims or victim*190 families of those murder ed are allowed to meet with a remorseful offender, have their questions answered, and venttheir emotions directly to the perpetrator. Citing the need for victims to heal from “traumatic criminal offences,” a programoperated through the Fraser Region Community Justice Initiatives Association in Langley, British Columbia, is discussed onthe Canadian Corrections website (Correctional Service Canada, 2005). The Canadian Ministry of Justice has supported thisfor many years (Umbreit, Bradshaw, & Coates, 1999)

These two sections have given rise to several cases which have continued to redefine the role of the courts in mandatingrestorative justice. The frequently cited case, R. v. Gladue (1999) involved an aboriginal woman who was found guilty of astabbing, While the Canadian Supreme Court did not accept her appeal, it further defined the meaning of Canadian Criminal

ithin the Canadian society, this sensitivity to native people is very unique. There is a long history of the battle foraboriginal rights, especially around treaty rights. In 1982, section 35 was added to the Canadian constitution, which recognized“existing aboriginal and treaty rights of aboriginal peoples” (Canadian Constitution, Section 35). (For more information onthe development of legal rights of the native people of Canada, see Sanders 1990; Tester, McNicoll, & Forsyth 1999; Bell,1998; and Murphy, 2001). While not addressing special rights within the criminal justice system, with this new constitutionalprovision came changes throughout the Canadian culture.Restorative justice promotes the ideas of the aboriginal people, such as healing, forgiveness and active community involvement.In R. v. Gladue (1999) the Canadian Supreme Court held that the courts have an obligation to consider all of the issues regardingaboriginal peoples, such as poverty, and consider the sanctions appropriate given their aboriginal heritage. The Court recognizedthat restorative justice reflected more the community justice of the aboriginal people, and a more appropriate punishment(Restorative Justice in Canada, 2000)

This statute lays the framework for restorative justice in all adult sentencing. The Canadian Supreme Court, in case law, hasacknowledged that this part of the code can include restorative justice (Proulx, 2000; Wells, 2000). However, the dichotomyof this paragraph, which mixes traditional punishment with restorative alternatives, remains an issue within the Canadian legalsystem (Roach, 2000).Indeed, this section of the Criminal Code expands in Sec. 718.2, where it instructs the court to take into consideration manyaspects of the crime, i.e., aggravating and mitigating circumstances, when sentencing. However in subsection (e), a significantconsideration is added:718.2 A court that imposes a sentence shall also take into consideration the following principles:(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be consideredfor all offenders, with particular attention to the circumstances of aboriginal offenders. (Canada Criminal CodeSec. 718.2, emphasis added

(d) to assist in rehabilitating offenders;*189 (e) to provide reparations from harm done to victims or to the community; and(f) to promote a sense of responsibility in offenders, and acknowledgment for the harm done to victims and to thecommunity. (Canada Criminal Code Sec. 718, emphasis added.)

The Criminal Code of Canada includes Sec. 718, which states:The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for thelaw and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or moreof the following objectives:(a) to denounce unlawful conduct;(b) to deter the offender and other persons form committing offences;(c) to separate offenders from society, where necessary;

anadian criminal law has a different structure than the United States. Canadian criminal law is federal, and its administrationis provincial. While the United States system has federal criminal laws, they are only relevant to a small group of crimes. Forexample, crimes occurring on federal land are covered by the federal code, as well as moving between states in the commissionof the crime. However, most of the criminal law in the United States is state law. By having a centralized source of law inCanada, the ability to mandate system-wide changes in their criminal justice system is more available on a national basis

he native or aboriginal roots of restorative justice are much more apparent in the Canadian system. Many of the processeswhich are used in programs have their first appearances within native people. New Zealand has structured its juvenile systemon restorative based processes from its Maori culture. In North America, both native communities from Canada and the UnitedStates have influenced the development of restorative practices. And, as discussed below, restorative justice in Canada maywell best serve the native populations with their criminal justice problems (Meyer, 1998)

The United States adopted the first two in many places,and Canada adopted others, i.e., community panels, however the involvement of police in family group conferencing is muchless developed than in Canada

estorative justice practices have grown from two influences in North American culture. In Canada, the one-on-one model ofvictim-offender dialogue grew out of the Mennonite tradition. The circle processes were reflected in the native or aboriginal*188 people. However within Canada, an Australian/New Zealand practice of police participating in family group conferencing

Restorative justice is a shift in the approach of the traditional criminal justice system. In the traditional system, the offender'scriminal actions violate the state and its laws. The focus is on establishing the guilt of the offender, and administeringpunishment. Justice is defined within the framework of the adversarial system, where one wins and one loses (Zehr, 1995).The restorative model differs because of the emphasis on the broken relationships that crime creates, and not the emphasis onthe violation of the state. In restorative justice the focus is on identifying the needs and obligations of the parties and makingthings right between them. The victim and offender are allowed to meet, and collaboratively agree on the way the harm thatthe crime caused can be repaired (Zehr, 1995).The restorative justice view acknowledges that crime harms more than victims. It harms all members of the community. Whenexamined from the community perspective, a restorative response to crime means that relationships are rebuilt (Bazemore,1998). If crime is a response to disharmony in the community, a community response offers the opportunity for local behavioralstandards to be imposed. In addition, creative solutions, which are usually lacking in court imposed sanctions, are possible.The community involvement in the process of restorative justice, in and of itself, is an important component in solving socialproblems (Bazemore, 1998).Restorative justice is a philosophy. There are many processes which reflect the “restorative principles” or the pillars of restorativejustice, and are included under the umbrella of restorative Justice (Zehr, 2002). Victim/Offender dialogue (sometimes referredto as Victim/Offender mediation) allows the parties the opportunity to speak to one another in a safe environment, utilizingthe facilitation skills of a trained mediator. In the process, the offender apologizes for the harm, the victim is allowed to havequestions answered, and together they work out a plan for the offender to repair the harm. Circles have been used for communitysentencing, and other types of expanded processes which include the victim, offender and the community who has experiencedthe harm. Family group conferencing involves family members of the offender, and offers the opportunity for the family unitto assist in repairing the harm (Zehr, 2002)

he beginning of restorative justice in the United States was also the use of victim-offender mediation. Earlyprograms were referred to as VORP (Victim/Offender Reconciliation Program). The first U. S. program was started in 1978,housed in Elkhart, Indiana, and was a joint effort of the Mennonite Central Committee and PACT (Prisoner and CommunityTogether). It was modeled on the Canadian victim offender dialogue program in Ontario (Umbreit, 1995)

Canada was the birthplace of restorative justice in North America, where the first program was developed in Kirchener, Ontario,Canada in 1974. The Mennonite Church sponsored this first face-to-face meeting between victim and offender, and emphasizedthe purpose of the dialogue was to gain understanding and reconciliation between the parties (Bonta, Wallace-Capretta, &Rooney, 1998). T

side from the increase in police force size, only one title of the Bill provides for crime prevention. Some would argue thatthe provisions that ban certain types of weapons is a form of crime prevention, but others would disagree. Almost $11 billionis provided for state and local law enforcement, and $2.6 billion for federal law enforcement.The Bill calls for only $6 billion for prevention programs. This is a much smaller amount than the original $7.6 billion.Unfortunately, in order for the Bill to pass the U.S. House of Representatives, a large shift of funds from prevention to prisonswas required.126 The prevention programs include grants for summer and after-school education and recreation programs;mentoring, tutoring and other programs involving participation by adult role models; programs assisting and promotingemployability and job placement; and prevention and treatment programs to reduce substance abuse, child abuse, and adolescentpregnancy, including out-reach programs for at-risk families. Also included are programs such as entrepreneurship, culturaland health programs, social activities, arts and crafts programs, dance programs, nutrition services, parental training programs,family counselling, and other programs for community development to benefit low-income communities, midnight sportsleagues, gang prevention, and drug-use prevention.While the Bill allots $6 billion for these programs, this funding is spread out over a six-year period. With over fourteen millionyoung people living in poverty, and thus at the highest-risk, the $1 billion per year comes out to only about $71.43 per at-riskyouth per year. That is not much of an investment considering the staggering annual cost of incarcerating only one of thoseyouths -- $35,000.The overall goals of the Crime Bill are to get tough with criminals and to prevent crime, mainly through deterrence. TheBill definitely gets tough with hard-core violent criminals, especially adult offenders and violent juvenile offenders who aretransferred to criminal court. In addition, deterrence appears to receive high priority, although deterrence has yet to be provensubstantially effective. By comparison, however, the prevention programs appear to be of low priority

or had one serious drug felony conviction and one serious violent felony conviction as stated above.120 The so called “truthin sentencing” provisions provide for federal grants to a state if it has increased the percentage of convicted violent offenders,has increased the average sentence which is served by violent offenders, and has statutorily provided that offenders with one ormore prior convictions for violent crimes will not serve less than 85% of their sentence.The Bill also extends the penalties for several offenses. These offenses include manslaughter, civil rights violations, traffickingin counterfeit goods and services, conspiracy to commit murder for hire, arson, and drug trafficking near public housing.121The Bill creates over sixty new federal crimes for which the death penalty may be imposed.122 Those listed which would mostlikely affect juveniles include death resulting from a drive-by shooting or carjacking; gun murder during a violent crime ordrug trafficking offense; murder by an escaped federal prisoner; murder of a state correctional officer by a prisoner; murderby a federal prisoner serving a life sentence; murder for hire; murder of court officials or jurors in order to obstruct justice;and retaliatory murders of witnesses, victims or informants.123 Those crimes related to drug trafficking carry the death penaltyeven when the drug trafficker is not directly involved with the specific death.Almost $10 billion is being spent to build and expand prisons.124 Approximately $150 million is being spent to ensure thepunishment of young offenders “who might otherwise be sentenced to probation, shock incarceration, reimbursement ofvictims, or weekend incarceration

he Crime Bill calls for certainty of punishment for young offenders, and prosecution as adults for certain crimes in federalcourt. The Bill also provides for violent offender sentencing (the “three strikes” provision) and truth-in-sentencing. In addition,the Bill increases the penalties for many crimes, establishes mandatory life sentences, and extends the death penalty to a largenumber of offenses. Virtually each section provides for a state to receive a federal grant if it strengthens the length, severity,and certainty of punishment.The “certain punishment for young offenders” section provides for grants to states that develop methods of punishmentwhich “ensure certain punishment for young offenders and promote reduced recidivism, crime prevention, and assistanceto victims, particularly for young offenders who can be punished more effectively in an environment other than a traditionalcorrectional facility.”119 While this provision does not promote incarceration in adult prisons, it does nothing to promoteprevention programs as a viable alternative. As discussed previously, the Bill provides for youth as young as thirteen to betried as adults in criminal court for violent offenses such as murder, rape, robbery, and assault. In addition, the Bill provides forincreased penalties for gang-related crimes, such as crimes involving firearms and drugs.The “three strikes” provision would mandate life imprisonment for a conviction of a federal violent felony provided that thedefendant had either two prior convictions of violent state or federal offenses that each had a potential sentence of ten years

The Crime Bill does little to increase rehabilitation efforts and resources. Those rehabilitative efforts which are provided focuson the non-violent offenders. One provision, called a “safety valve” would allow a judge to use discretion to waive mandatoryminimum penalties for first-time, nonviolent offenders. The offender must not have used threats of violence, a firearm, oranother dangerous weapon in connection with the offense. In addition, the offense must not have resulted in death or seriousbodily injury to any person, and the offender must not have been an organizer or leader in the offense. Lastly, the offender musttruthfully provide all information and evidence concerning the offense to the Government.117 The “education requirement forearly release” provision requires that an inmate be making satisfactory progress towards a high-school diploma or equivalentdegree for the credit towards service of sentence to be effective

he current system of punishment is not working. Likewise, rehabilitation efforts have not proven to be effectively reliable.The answer is to prevent the crime before the first offense is committed. It costs about $35,000 per year to incarcerate a *142youth.98 It would cost much less to educate him or her, or even to establish counselling programs and community activitiesdesigned to deter juveniles from committing their first crime. In addition, putting juveniles in prison instead of attemptingto keep them out may result in their being released in worse condition than when they entered. By avoiding the first crime,society not only saves resources by not incarcerating the youth, but also gains from the contributions that the individual willmake throughout his or her life

Because of the lack of faith in the current preventative systems, much funding and support are being cut from programs thatnurture children and intervene to keep kids out of trouble. As a result, issues that could or should have been resolved earlier areending up in juvenile or criminal court.97 These prevention programs, however, have not been given enough time to becomeeffective. Considering that prevention programs were not seriously considered until the 1960s, errors in the beginning areinevitable. It was not until recently that the predictive factors for juvenile offending were discovered. The identification of thesefactors will enable social scientists to develop preventative programs designed specifically to counter-balance the problem.What is needed is more research to determine which programs have a positive effect. The first thirty years of preventionprograms showed that individualized programs do not work, but community-based programs are more promising. The differenceis that the individualized programs did not take into account the overwhelming influence that community, educational, andfamilial surroundings can have on a youth. These programs need more community involvement such as recreational programs,positive police interaction, and better education. Prevention programs need to be the primary source of intervention withtroubled teens, not the court

ids need to be held accountable, but not by punishing them by putting them in a brutal dehumanizing institutionfor six to eight months, where they continually learn to survive by intimidating other people, where they loserespect for authority, which, in turn, increases the odds that when they are released from that institution they aregoing to engage in similar or worse criminal activity.93More and longer incarceration does not appear to be working. As the incarceration rate has gone up, so has the percentage ofjuveniles rearrested for crimes after their release.94 These juveniles come out of the institutions in worse condition than whenthey entered because they are coming out embittered and hardened.A majority of the juveniles sent to prison or other institutions are suitable for an alternative sanction. “Many non-violentoffenders are incarcerated instead of participating in community-based programs, which cost less and allow convicted criminalsto provide restitution to victims.”95 Additionally, those who are incarcerated receive very little treatment and often return ina worse state that when they entered.Alternative sanctions include “intensive supervised probation, house arrest, mandatory treatment programs, communitycorrections, boot camp, and residential placement

Prevention programs are proactive efforts aimed at reducing delinquent acts prior to their commission. Studies have uncovereda list of predictors for juvenile offending which can aid officials in identifying “at-risk” youth prior to the commission oftheir first criminal act. The predictors of juvenile offending include (1) early troublesome, dishonest, aggressive, or antisocialbehavior, (2) poor parental guidance and stability, (3) criminal parents and siblings, (4) broken homes and early separations, (5)social deprivation stemming from a low economic level, and (6) school failure resulting from low intelligence, or achievementand absenteeism.91 Thus, there appears to be a correlation between juvenile delinquency and factors such as poverty, physicaland emotional abuse, neglect, family dysfunction, and educational deficiencies.92The most promising prevention programs involve the entire family or community. Some of these programs include familyand substance-abuse counselling. Others include after-school programs and midnight sports leagues to help raise the juveniles'self-esteem and keep them off the streets. Another emphasis is on educational and job placement programs that will enable thejuveniles to feel a sense of worth and give them hope for a better life

The Crime Bill proposes $6 billion for new prevention programs, including job training, school improvement, and after-schoolprograms.88 However, this figure is much less than originally requested and many social service and juvenile officials are upsetbecause of the Bill's heavy preference for punishment over prevention.89 An official stated that “[i]t's going to be more *141costly in the long run, and it really doesn't begin to address the problem of kids who grow up in violence and will become violent,and kids who are victims and will become victimizers.”90 While there are undoubtably juveniles who are mature enough to besentenced as adults, there are others who are only confused and who are not the habitual criminals that the system was set upto weed out and punish. For these individuals, the solution is prevention programs that will focus on their specific needs andproblems and will “straighten them out” before a crime is committed, thus eliminating the need for court involvement

By 1991, the United States had surpassed the former Soviet Union and South Africa as having the largest prison populationin the world.”85 Although more people have been sentenced to prison, it does not appear that it has actually reduced crime.86This is shown by the higher murder rate in states with the death penalty than in those without it.87 One can only assume thatthe same is true for other crime and punishment. What needs to be addressed is the root causes of crime and the social contextthat encourages it. The new Crime Bill fails to adequately address these issues

There is a growing section of society, however, that believes effective prevention programs are the only way to lower crimerates. Recent legislative attempts reveal that at least some government officials agree. Legislatures are realizing that it makesmore sense to invest in programs that reach at-risk youth before they commit their first crime than to spend millions of dollarsto build new prisons.83 As stated by one congressman opposed to the Crime Bill:Much of the crime bill places too little emphasis on prevention and too much on putting people in prison. Insteadof spending money on prisons and prisoners, we should be spending more money on schools and job training.Providing adequate educational and job opportunities is a far better approach to reducing crime, and it is far lesscostly to society.

owever, fewer than twenty years later, prevention theorieshave lost their appeal. Many citizens are calling for decreased federal spending on prevention programs and for increasedpunishment of juvenile offenders, including trial and treatment as adults

It was not until the 1960s that proactive preventio

There is also evidence that incarceration may in fact result in the production of more frequent and serious offenders.80 Theproblem might be reduced if one could determine which offenders were likely to commit serious, repeat offenses. That way,the risk of one-time offenders becoming embittered through incarceration could be avoided. The adult custodial experienceprovides the young offenders an opportunity to learn the “art” of violence and advanced criminal behavior from experts whohave made it their live

here is evidence that trying juveniles in criminal court does not result in harsher punishment, but may actually result in nopunishment. When juveniles are tried in adult court, they have the right to a jury trial. There is evidence that it is easier toconvict a juvenile appearing before a judge in juvenile court than it is to convict him before a jury in a criminal proceeding.79One reason is that juries are reluctant to sentence a youth as harshly as they would an adult, especially if the youth would besentenced to an adult prison

The explanations for the failure of punishment to deter are fairly straightforward. First, the advantages of crime are greatbecause society's moral and ethical limits on punishment do not allow for punishment that fits the crime.77 Punishmentin our society is not an eye-for-an-eye because society wants to preserve civility, something that criminals do not care about.Second, the recidivists calculate their gains and losses over many criminal actions, the majority for which they are not caughtand punished.78 Therefore, the price that they pay when they are caught is greatly outweighed by the profits they have gained

“Just desserts” sentencing involves the theory that criminals should be punished harshly and that they deserve the punishmentthey receive. This theory has a strong retributive foundation and punishes according to past behavior, not on the basis of whothe offender is or may become. To be most effective, the sanction must be given and carried out as quickly as possible after thecrime, and it must logically flow from the crime committed.72 It must also be certain, severe, and constant.73The sentences that most delinquents now receive in both state and federal systems are based on the idea of “just desserts” ratherthan the child's “best interests.” Supporters of “just desserts” sentencing argue that the sanctions given in juvenile court areinappropriate for the seriousness of the crime and are ineffective as general and specific deterrents. Proponents of the juvenilesystem argue that violent juvenile crime is a transitory behavior pattern, which will subside as the juvenile becomes moremature and is unlikely to escalate to more serious or persistent crime.74 Thus, proponents argue severe punishment would bewasted because the juvenile is unlikely to continue committing offenses even without punishment. A gap in the punishmentoccurs when juveniles make the transition to criminal court because they are not irresponsible children one day and responsibleadults the next.75 “Because prior records cumulate, criminal courts sentence older offenders more severely when their rate ofcriminal activity is declining and sentence younger offenders more leniently even though they are at the peak of their criminalcareers.”7

t the heart of the debate is whether juveniles understand what they are doing when they commit these violent crimes. Thereis an argument that punishment has no permanent effects because after the punishment has stopped, the suppressed behaviorreappears.69 This is especially true if the behavior is very rewarding when it is not punished. The threat of punishment isenough to deter the majority of the public. Studies have shown that most criminals are only one-time offenders.70 When wevisualize a criminal, the person we see is the recidivist, who is only a small percentage of those committing crimes.71 Therecidivist has been proven to be insensitive to punishment, as *140 illustrated by his continuing to commit crimes oncereleased from priso

Studies on the effectiveness of deterrence indicate that, generally, crime rates go down as the certainty and severity ofpunishment rise.67 These studies, however, are only based on reported crimes, and the findings can usually be attributed toother factors such as the level or type of crime, the level of police involvement, and societal tolerance.68 As a consequence,researchers are fairly certain that deterrents are effective. The problem is that they do not know which ones are effective, thelevel to which they must be stressed, which crimes they deter, the extent to which they deter, or at what cost to society thisdeterrence occurs

uring the past decade, at least one quarter of thestates have redefined the purpose of their juvenile courts.65 “These amendments de-emphasize rehabilitation and the child's,‘best interests' and emphasize the importance of protecting public safety, enforcing children's obligations to society, applyingsanctions consistent with the seriousness of the offense, and rendering appropriate punishment to offenders.”66 These changesin purpose signal a basic philosophical reorientation.

hree specific criticisms of the juvenile court system have been identified. First, the sanctions in juvenile court are thought to beless certain and severe, creating a leniency gap in punishment and retribution. Second, the high rates of violent juvenile crimelead to the belief that the rehabilitative philosophy of the juvenile system is ineffective in curtailing future crime and violence.Finally, the shorter sentences in juvenile court are thought to pose greater risks to the community.62 Rehabilitation has notbeen shown to have any predictably beneficial effect.63 The perceived weakness of the rehabilitative system has promptedlegislatures to adopt more punitive strategies which increase the length and severity of sanctions for violent juvenile offenders

hallenges to rehabilitation began with the rapid increase in juvenile crime rates in the 1970s. Serious and violent juvenilecrime rose steadily from 1974-79, and again in 1980-81.59 In 1991, juvenile homicides, forcible rapes, robberies, andaggravated assaults reached their highest levels in the nation's history.60 Critics of the juvenile system linked these increasesto the ineffectiveness of rehabilitative programs

Rehabilitation is the result of plannedintervention that reduces the offender's future criminal activity.58 There is always a delicate balance between the need to fosterthe healthy development of the juvenile and the obligation to protect the community.

he number of juvenile court cases involving serious offenses such as murder and aggravated assault grew 68% from 1988to 1992.54 A study showed that homicides increased by 55%, robberies went up by 52%, forcible rape increased by 27%, andaggravated assault cases increased by 80%.55 The same study showed an increased willingness by society to prosecute youngpeople, especially in criminal court. These cases were transferred to adult court more readily based on the seriousness of theoffense, the juvenile's record, and the juvenile's amenability to treatment. This is a punitive approach.56 While there is stillsupport for the rehabilitation and prevention philosophy, particularly from social and behavioral psychologists who nevermade the shift to a more punitive approach, the overwhelming public opinion and outcry for more punishment will make theestablishment of and commitment to prevention programs difficult.

It is time to refocus sentencing and treatment on the offender and not the offense. The realization of the role that poverty,unemployment, hopelessness, poor health care, and limited education plays in juvenile crime must be accepted. In manyinstances, the “three hots and a cot” that prisons provide is better than what the youth are receiving on the outside.*139 ... The conditions of life [in the slums], economic and social, conspire to make crime not only easy toengage in but easy to invent justification for .... The slums, with all their squalor and turbulence, have moreand more become ghettos, neighborhoods in which racial minorities are sequestered with little chance of escape.People who, though declared by law to be equal, are prevented by society from improving their circumstances... are people with extraordinary strains on their respect for the law and society

Currently, the “best interests” of the child are often not considered during sentencing. There is an increasing trend to viewthe juvenile offender as a willful perpetrator rather than as a victim of societal influences and hardships.49 The focus is nolonger exclusively on the offender, but instead on the severity of the alleged offense, the sophistication and maturity of thechild, the prior offense record of the child, any indications of responsiveness to prior rehabilitative efforts, and the availabilityof alternatives to the juvenile court.50 The sentencing philosophy has shifted from treatment to punishment. Treatmentfocuses on the mental health, status, and personal characteristics of the individual rather than on the commission of prohibitedacts.51 Punishment, by contrast, assumes that responsible actors who make voluntary prohibited choices deserve to suffer theunpleasant consequences

Unfortunately, while the juvenile justice system may have been on the right track in believing that social influences played arole in juvenile crime, the juvenile justice system's response to delinquency was found to be disproportionate to the severity ofthe offense. As one policeman stated, “[t] he law says a kid should be treated differently because he can be rehabilitated, butthey weren't robbing, killing and raping when kiddie court was established. Kids are different now, but the law hasn't caughtup with the changes.”48 The feeling is that courts have a responsibility not only to serve the welfare of the child, but also toprotect society.

Rehabilitation was the plilosophy of the juvenile court system for approximately 150 years. Originally, the juvenile was seenas a child, someone who was an unwilling victim of influences beyond his control. Thus, it was believed that the purpose ofthe juvenile justice system was to rescue these children from the evil influences in their surroundings and prevent them fromcommitting further crimes. The purpose was not to punish but to assist in the individual's rehabilitation and protection fromsociety. In essence, the juvenile justice system existed to protect the “best interest” of the child.The juvenile's conduct was often seen as the natural result of causes beyond his control and required helpful interventionrather than punishment. A common-held perception was that teens are more vulnerable and less self-disciplined than adults.Thus, while the crimes committed by juveniles may be just as harmful as those committed by adults, juveniles deserve lesspunishment because they have “less capacity to control [their] conduct and to think in long-range terms than adults.”45Criminal acts were seldom thought to be the juvenile's fault alone. Families, schools, and communities were believedresponsible for socializing young people. Society shared some blame for their offenses. Juveniles were also thought to bemore susceptible to peer group influences. The Supreme Court suggested that juveniles were less culpable than adults becausethey were less mature and responsible than adults, and lacked the experience and judgment of adults.46 The Court held that“[i]nexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or herconduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult.

Judicial waiver focuses on the individual and involves transferring a juvenile to criminal court only on a discretionary basisfollowing a hearing to determine if the juvenile is amenable to treatment or a threat to public safety.39 The specific factorsand substantive criteria that a juvenile court may consider were stated in a non-binding memorandum by the Supreme Court inUnited States v. Kent.40 These factors include the seriousness of the offense, the manner in which the offense was committed,whether the offense was against a person or property, the likelihood of an indictment, the desirability of adjudication in onecourt if juveniles and adults are involved, the maturity of the juvenile, the juvenile's prior criminal history, and the prospectof rehabilitation of the juvenile and protection of the public.41Legislative offense exclusion focuses on the offense and provides that any youth charged with certain specified offenses arenot within the jurisdiction of the juvenile court.42 Many courts have determined that transfer to criminal court is justifiedwhen the maximum punishment available in juvenile court is clearly inadequate. In addition, many states now use determinatesentencing and guidelines mandating minimum terms of placement in secure care.43 Because of the ease of transfer to criminalcourt, those who reach the age of sixteen have effectively become adults despite statutory language that defines eighteen asthe beginning of adulthood.

y the mid-1970s, arrests of persons under eighteen had increased by 144% while arrests of persons over eighteen increased byonly 12.9%.34 As a result, society began calling for a “get tough on crime” stance. Support for rehabilitative and preventativesystems quickly gave way to more punitive theories. Many states lowered the minimum age for trial in criminal court for seriouscrimes and redefined the circumstances under which a juvenile could be transferred to adult criminal court.35The shift in juvenile treatment philosophy from rehabilitation to punishment, combined with recent public sentiment andconcern over the rising juvenile crime rate has facilitated the transfer of juvenile offenders to criminal court for trial as adults.The prosecution of juveniles in adult courts is one of the most extreme responses to serious juvenile crime. Many states nowallow a judge to order juveniles to criminal court (“judicial waiver”) and have statutory guidelines to facilitate such transfers(“legislative offense exclusion”).36 Between 1978 and 1982, *138 juvenile codes were amended in half of the state legislaturesin order to simplify and expedite the transfer of juveniles to criminal court for trial as adults.37 In addition, some states haveamended their juvenile codes to the effect of a more punitive approach. Some states use legislative offense exclusion to removejuveniles charged with capital crimes from the juvenile system.38 Others exclude longer lists of offenses such as rape orarmed robbery. These statutes reflect legislative distrust of judicial discretion in sentencing juveniles and signal a shift fromthe individualized treatment philosophy in the juvenile courts to a more retributive one

hearings were similar to adult criminal proceedings and, therefore, juveniles were entitled to the same safeguards as adults.29Thus, until the Court's decision in Gault, juvenile proceedings were formally considered non-adversarial because the court wasserving the interests of society as well as the child's best interests.30However, by giving children the same constitutional safeguards and procedural rights as adults, the Court in In re Gault provideda philosophical basis from which to argue for a more punitive juvenile system.31 A common sentiment was that “[i]f childrenare enough like adults to warrant the same rights, are they not also like adults in knowing the difference between right andwrong?”32 There was concern that “the Court was moving in a direction that would have the effect of eliminating most if not allof the distinctions between juvenile and adult courts and, consequently, that the objective of the juvenile justice system wouldbecome the pursuit of retributive justice within a fully adversarial system.

The creation of a separate juvenile court was based on the concept of parens patriae, which is the idea that the state providesfor wayward or troubled children if the parents fail to maintain their welfare.23 Because the children had not received adequateparental guidance, they were not seen as solely responsible for their own conduct. Delinquency was thought to be an outgrowthof poverty and immorality, thus the purpose of the court was to rehabilitate the youth through social and psychological services.“Houses of Refuge” were the first public facilities established exclusively for juveniles, and were intended to remove childrenfrom adult prisons.24 They were based on the premise that children were not miniature adults, but that they required differenttreatment including educational and vocational training.25 These “Houses of Refuge” focused only on reactive remedieshowever, and did nothing to prevent delinquency.The first juvenile court was established in Illinois in 1899.26 This system was designed to protect the state's right to use parenspatriae for official intervention in the juvenile's life, especially if the youth was neglected. At that time, children were seenas vulnerable, innocent, passive, and dependent beings who needed help in preparing for life.27 By 1912, only two states werewithout juvenile justice systems which addressed not only criminality, but also poverty.28 These courts were designed forprotection and not for punishment. In a landmark decision, the U.S. Supreme Court in In re Gault held that juvenile delinquen

The early criminal justice system provided no separate adjudication for juveniles accused of crimes. Only the common law'sinfancy defense allowed deferential treatment for some juveniles under the age of fourteen.21 As a result, most juveniles weretried as adults and sentenced to adult prisons. Nineteenth century reformers found two major problems with the system. First,the incarceration of juveniles with adults only further educated the youth in the ways of crime. Second, because of the harshnessof the adult penalties, many juries were reluctant to convict a juvenile.22

A 1991 national survey of public attitudes regarding juveniles being tried in adult courts reveals that most Americans believethat juveniles should be tried as adults for violent crimes.16 This study was performed by the Survey Research Center of theInstitute for Social Research at the University of Michigan (Ann Arbor). “The overwhelming majority of survey respondents(82%) believed that the amount of serious juvenile crime increased in their respective states during the last three years.”17Seventy-three percent of respondents believed that the primary purpose of the juvenile system should be to treat and rehabilitatewhile only 12% thought punishment should be the main purpose.18 Overall, however, a substantial portion of respondents feltthat juveniles accused of serious crimes should be tried as adults and not sent to the juvenile system for rehabilitation. Asthe seriousness of the offense increased, the proportion of respondents who favored trying juveniles in adult courts and *137sentencing them to adult prisons increased.19 The survey also noted that as the fear of becoming a victim of violent crimeincreased, so did support for trying juveniles in adult courts and for incarcerating them in adult prisons.20An unavoidable question is whether public opinion should guide legislation regarding juvenile crime and punishment. Somewould argue that society does not have all of the facts and that experts in the area of behavioral psychology and sociology arebetter equipped to advise Congress on the best method of curtailing juvenile violence. While this may be true, almost everyonewould agree that public views are important and should be considered when critical public policy issues are involved.

Society is beginning to view children as less innocent and more capable of distinguishing right from wrong. As the legalemphasis shifts from protecting and reforming the child to protecting society, children are also being viewed as less likely tobe rehabilitated. This societal view is influenced by the media accounts of “kids-who-kill.” As a result, many people are tiredof discussing rehabilitation; they want action. Juveniles who repeatedly commit violent offenses are receiving the messagethat they can get away with these serious crimes because they are young and will receive a short sentence, if any at all. Inthis regard, the current system does not work. Instead, it fosters the abuse of young kids by older ones. Many gang memberssimply recruit younger members to transport guns and drugs, and to commit drive-by shootings because of the almost absolutecertainty that the younger child will not be seriously prosecuted.

Young children who commit adult crimes such as assault, rape, armed robbery, and murder, are often tried in the same courtsas teenage shoplifters, burglars, and petty drug offenders12 and receive sentences which bear no relation to the crime theycommitted. In many instances, even when convicted of first-degree murder, the teens are back on the streets in fewer thaneight years,13 and there is no public record of their violence. Representative Charles Schumer (D.N.Y.), a member of theHouse Judiciary Committee, stated in an interview that “[t]he public is anguished about crime. They are telling legislators: ‘Dosomething!”’14 That “something” is tougher penalties for juvenile offenders. A recent poll revealed that approximately 73% ofAmericans believe that juveniles who commit violent crimes should be punished as adults.

It is often difficult to speculate on the reasoning for congressional legislation, especially in the absence of lengthy floordiscussions and commentary. One can safely assume, however, that public opinion plays a significant role in guiding newlegislation. Recent television news polls show that up to 70% of viewers have changed their daily routine as a result of increasedcrime.10 Over the last decade, the number of juveniles committing murder, rape, robbery, and assault have increased by 93%.11The surge in gang-related crime has led many to focus on the juveniles in gangs -- children as young as eleven -- who routinelycarry guns, sell drugs, and are involved in violence. Many people feel that our youth are out of control and it is time for societyto regain control. Society is demanding a reduction in the amount of violent crime, particularly violent juvenile crime

Two titles in the Crime Bill, Title XIV - Youth Violence and Title XV - Criminal Street Gangs, include sections which providefor the adult prosecution of juvenile offenders. Title XIV provides that juveniles committing murder or attempted murder aftertheir thirteenth birthday may be charged as adults. In addition, transfer to adult court may be authorized if a juvenile possessesa firearm during the commission of a violent felony. Title XV provides, in part:In considering the nature of the offense, as required by this paragraph, the court shall consider the extent to whichthe juvenile played a leadership role in an organization, or otherwise influenced other persons to take part incriminal activities, involving the use or distribution of controlled substances or firearms. Such a factor, if foundto exist, shall weigh in favor or a transfer to adult status, but the absence of this factor shall not preclude sucha transfe

nited States Code, and make a factual determination, on the record, for each factor. These factors include the age and socialbackground of the juvenile; the nature of the offense; the extent and nature of the juvenile's criminal or delinquency record; thejuvenile's intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's responseto such efforts; and the availability of programs designed to treat the juvenile's behavioral problems

n August 21 and 25, 1994, the House and the Senate passed the Crime Bill. Two provisions included in the Bill provide foradult prosecution of juvenile offenders. The new provisions allow juveniles to be tried as adults for all violent crimes which fallunder federal jurisdiction and for crimes involving firearms or drug trafficking.7 The provisions, however, do not automaticallytransfer the juvenile for adult prosecution. The court must still apply the balancing factors set forth in Section 5032 of title 18

In response to growing public concern over juvenile crime and violence, the final version of the Violent Crime Control andLaw Enforcement Act of 1994 (Crime Bill) included two provisions to crack down on juvenile crime. The first provisionallows juveniles as young as thirteen to be tried as adults for violent crimes such as robbery, rape, attempted murder, andmurder.5 The second provision provides for adult prosecution of serious juvenile offenders involved in criminal street gangs.6Whether longer and stiffer prison sentences have any real effect on recidivism, particularly with respect to juveniles is an age-old question. The passage of the Crime Bill and its juvenile crime provisions again brings this issue to the forefront

At one extreme lies the system bestdescribed by the concept of parens patriae, a doctrine which emphasizes “helping” the child and intervening in his or her bestinterest because the parents are unable to provide adequate guidance. At the other extreme lies the more formal, legalistic systemwhich focuses not on the offender, but on the offense committed, punishment for present crimes, and past criminal history